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Court hostage is also part of state capture

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By LUIS FRANCESCHI
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A group of 27 experts from Africa and elsewhere had gathered at the Gilly Leventis Meeting Room, at the Bonavero Institute of Human Rights, in the University of Oxford. There were senior judges, lawyers, prosecutors, political scientists, diplomats, politicians, business people, industry leaders, drafters, and a few academicians.

It was an engaging and focused discussion about civil and criminal procedure. Can we improve our messy justice process? How do we go about it? What are the human and technical gaps? After all, the system was not carved in stone five hundred years ago. Can we create a better system where people get timely justice; honest, and more accurate decisions?

This week’s piece is a bracket to the thread of scandals we have been following in the previous weeks. This week, we decided to help everyone understand that state capture is a two-pronged monster. On the one hand, it affects legislation; usually cartels capture the legislature and pass laws that aim at securing their haven of rotten and unfair advantage to the detriment of the common good. On the other, they ensure court hostage. This means that they sabotage justice and thrive when the court system remains inefficient, manipulable, and largely dysfunctional.

“Dysfunctional courts” was the biggest concern we all shared in that Oxford room. The courts in Anglophone Africa are not devoid of the challenges that affect courts across the world. Issues such as backlog of cases, mountains of case bundles, excessive use of paper and non-user-friendly case management methods make navigating through cases cumbersome, highly inefficient and prone to administrative and substantive corruption.

The latest Rule of Law Index by the World Justice Project (WJP) ranked Africa as the lowest in the world in access to justice despite the gallant efforts of various individuals who often swim against the tide of state interference, corruption, cartels, adversity and inadequate funding. The ranking was as follows:

A selected African countries and their World
A selected African countries and their World Justice Rule of Law Index scores.

The current justice scenario in Africa jeopardises its socio-economic development, human rights, and democratic growth. Judiciaries have largely failed to guarantee justice. We keep on hoping that an outdated and ineffective system will save us, while our attitude towards the rule of law is negative, biased, and disrespectful.

We use and abuse the system, turning our courts into a mockery of justice. We teach our students the art of manipulating the process for the client’s benefit, regardless of whether the client is right or wrong. We have forgotten that it was all about justice. Whilst the growth of alternative dispute resolution mechanisms is healthy, they cannot and should not substitute efficient, just and transparent courts.

The ability of African countries to provide real and meaningful access to justice for its citizenry calls for substantive reforms to the current rules of procedure and to technicalities that stymie effective justice.

Some experts think the remedy to all our evils is technology; the inclusion of IT in every system of governance and adjudication. The modernisation and digitisation of the justice system is rightly seen as an imperative to Africa’s justice, peace, future economic growth, and social success. But throwing new haphazard technologies on a dysfunctional system will not solve the problem. It will instead give the cartels the golden chance of creating a new Huduma Namba project scandal, part II.
The inclusion of IT alone will not in itself improve the system. We may just be repainting a rotten apple green. This will make an unsustainable, costly, and inefficient system look fresh for a while, but the rottenness of inefficiency is still very much at the core.

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Only a working judiciary will operationalise the rule of law and ultimately allow sustainable financial investment and growth. But to repair such a heavy, old, and misfiring machinery needs depth and patience.

We need to identify salient human and technical aspects that jeopardise the process of justice. For example, our procedural rules cannot be guided by regulations that were drafted 80 years ago, for a different world. We also need to rethink legal education so that we stop teaching our students to perfect the art of manipulation. This is essential before we think of new technologies.

Botswana and Namibia have carried out structural reforms to their justice system. We can learn from their experience. The change may entail drafting new civil and criminal procedural legislation that is aligned with the principles and values of our constitution. This may be done in a sandbox approach, where key areas are identified and improved as the wheels of justice keep moving. It will also be necessary to train court users: both officers and practitioners, as well as introduce changes to the legal training curricula in law schools.

The court system should be waterproof and user-centred. As we close human errors and gaps in the system, we can also deal with the new technologies such as cloud-based case management systems, artificial intelligence bots, blockchain technology, electronic document archiving and retrieval technology. These are already proving to be a significant value addition to user experiences and ultimately to their outcomes accessing the relevant judicial systems, in other jurisdictions.

We must insist that technology is good when contextualised and guided by the need to resolve specific problems. Misguided technology can create algorithms which are biased. Not long ago, a new AI algorithm, COMPAS, was built on historical defendant data to “find correlations between factors like someone’s age and history with the criminal legal system, and whether the person was rearrested. It then uses the correlations to predict the likelihood that a defendant will be arrested for a new crime during the trial-waiting period”.

It was later found that there was an apparent racial bias in the programme. Perhaps a racial bias had been written into the programme, and blacks were “almost twice as likely as whites to be labelled a higher risk but not actually re-offend,” whereas it made “the opposite mistake among whites”.

As we fight legislative state capture, we also need to deal with ‘court hostage’ by filling the cracks impunity has created and redesigning the system so that it may function as it should.
The challenge ahead is huge.

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The series is researched and co-authored by:

• Prof Luis Franceschi, founding dean of Strathmore Law School and Visiting Fellow, University of Oxford
• Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
• Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Wandia Musyimi, Research Associate ALN Anjarwalla & Khanna, Advocates

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Our wizards saw the Brave New World, but none saw coronavirus

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By CHARLES ONYANGO-OBBO

Last year in December, Nation Media Group held its first Kusi Ideas Festival in Kigali. The festival tried to peer ahead the next 60 years in Africa.

There were many Brave New World ideas about how that future might look like, and also the perils that progress almost always brings. Needless to say, no one saw Covid-19 coming.

A futurist curtain-raiser in The EastAfrican, titled Africa in 2079, came close to outlining a mirror universe to the one Covid-19 is bequeathing us.

Between London, Zimbabwe, and the corners of Africa where Econet’s fibre optic network reaches, Strive Masiyiwa, founder and chairman of Econet Wireless and former chair of the board of AGRA wrote:

“I recently invested in a tech start-up that has created an Uber-like platform for tractors, enabling farmers to link up with a central database and order a tractor via SMS…freeing the farmer from the drudgery of the hoe. This service is particularly valued by women farmers, enabling them to circumvent social norms that might otherwise hamper their ability to hire a tractor.” From wherever we are hiding from the virus, unable to roam the farm, Uber farming could be the new way a lot of our food is produced.

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From Tanzania, Aidan Eyakuze, who is executive director of Twaweza East Africa and has been confined in-country as an elegant prisoner for nearly two years because of his love of inconvenient data, painted an intoxicating but strange utopian-dystopian picture of Africa at the end the century.

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By 2079, he foresaw the “vast majority of Africans earn their living through multiple micro-tasking (MMTs) ever since every ”job” was unbundled into its component tasks…leaving only those unbundled micro-tasks needing social intelligence, creativity or dexterity to be done by people. All ”taskers” are always-on private contractors who bid relentlessly for the privilege of tasking.

Incomes are kept low by the relative scarcity of tasks requiring the human touch.

“The unrelenting competition for tasks is both stressful and socially divisive — you are competing against everyone all the time…even marriages have renewable term limits, ‘in case someone better comes along.’” With work-from-home regimes, the former has come 78 years earlier.

Indeed, even for the latter, more people now probably think being cooped up with the same man or woman in the house “for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, till death us do part,” is a very archaic model.

Between Italy and Kenya, the Society for International Development’s Arthur Muliro, peered into a what a truly borderless Africa might look. Among others, his gaze settled on, of all places, Libya.

“Libya…was now welcoming other Africans and allowing them to settle. The peace deal that had come after a decade of civil war was holding and there was new optimism, in part boosted by the arrival and expansion of new migrant groups who had settled there and were helping rebuild their adopted country.”

On a close re-reading, turns out Aidan hinted that Turkey, which jumped in the Libyan fray as the coronavirus made its way out of Wuhan, might have something to do with it.

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Stadiums progress welcome – Daily Nation

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By EDITORIAL

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Last week, the Sports ministry’s top officials, led by Chief Administrative Secretary Hassan Noor Hassan and Principal Secretary Joe Okudo traversed the country to access the ongoing construction of stadiums.

President Uhuru Kenyatta also made an impromptu tour of the Nyayo National Stadium to ensure that all is well besides giving Cabinet Secretary Amina Mohamed full support. That has made sure that renovation works resume at all the stadiums — including Kasarani, Nyayo, Kipchoge Keino, Kamariny and Wote — and that everything is running on schedule.

Upon completion of some of these arenas, the country will have positioned itself to host major world events, especially in football, athletics and basketball. The ministry must, therefore, ensure that, while it has given contractors an ultimatum to finish their work, it also insists on quality delivery.

But there are concerns about work at county stadiums, especially in Mombasa, where those who redesigned the arena have done away with the internationally approved running track.

The new stadium has been designed for football only hence won’t host any track and field events. The four lane track will only be for warm up and this has raised eyebrows.

Mombasa County Chief Sports Officer Innocent Mugabe said Bububu grounds in Likoni and Kenya Ports Authority’s Mbaraki Sports Club will be upgraded for sports use. Mombasa being at low altitude, it is suitable for staging major World Athletics events, having staged the 2007 World Cross Country Championships.

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Kenya is bidding to host the 2025 World Championships in Athletics and Mombasa can easily be the venue with a good stadium in place. There is still time to build a county stadium.

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Ensure reopening of schools runs smoothly

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By EDITORIAL

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When Education Cabinet Secretary George Magoha announced a fortnight ago the postponement of school reopening to January next year, he gave an exception. Universities, teacher training colleges and technical training institutions were directed to be ready to reopen in September.

Consequently, they were asked to put in place safety measures prescribed by the Health ministry, including reorganising classrooms and hostels to ensure social distancing. Just a month to the planned reopening, are those institutions really prepared?

In the past few days, Prof Magoha has convened meetings with the heads of the institutions to plan for the reopening and visiting the colleges to assess their preparedness. Preliminary reports from these engagements indicate that just a few institutions are ready.

POOR STATE

At the university level, so far, only Strathmore has been declared ready for reopening. Ensure reopening of schools runs smoothly

For teachers’ colleges, three — Murang’a, Kibabii and Kericho — have met the threshold. Assessment is ongoing for the technical training institutions.

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But the broad observation is that most of the institutions are not ready. Though not surprising, most of them are ordinarily in poor state and Covid-19 has just exposed them. Beyond the situation, long-term actions are required to revamp and revitalise them.

Reopening the colleges in September will be the starting point for relaxing restrictions in the education sector. The reason for beginning with colleges is that they have mature students who understand the health protocols and can, therefore, take care of themselves and minimise infections. Their experience would then inform plans for reopening primary and secondary schools.

REPEAT CLASSES

Closure of schools and colleges has dealt a huge blow to education. Learners in schools have lost a whole year and have to repeat classes next year. This comes with high social, economic and psychological. Indeed, this is the first time in history that schools are being closed for a year.

The last time the education sector suffered most was in 1982, when, following an abortive coup, the University of Nairobi and then-Kenyatta University College were closed for nine months. That created a major backlog and that took five years to clear. This is the reason steps should be taken at the earliest opportunity to mitigate the damage.

The challenge, therefore, is for the colleges to work on those health protocols to prepare for reopening. All other sectors, such as transport and tourism, are reopening and, therefore, colleges have no reason to lag behind. We ask the management of the institutions to expedite the required processes and get ready for reopening in September as directed.

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